Frightening misuse of federal power Medicare-billing suit against Henry a chilling example for ordinary folks By Henry Pence, Lexington Herald-Leader Steve Henry is married to a former Miss America, is a wealthy and accomplished surgeon, gives money to good causes and favors an anti-flag-burning amendment. If this guy could be unfairly targeted by federal prosecutors, what do you think could happen to you? That question can't be tossed aside because Henry is also a former lieutenant governor and clearly still harbors ambitions for higher office. In late May an office manager for the orthopedic surgery practice where Henry worked quietly pleaded guilty to charges of embezzlement and fraud, reopening interest in this story that burst onto front pages in 2002, as Henry was preparing to run for governor. Then-U.S. Attorney Steve Pence sued Henry, alleging that he had defrauded Medicare and Medicaid between 1996 and 2001 by billing for operations he didn't perform or supervise. "This is very serious misconduct," Pence said at the time, a "systemic, a widespread pattern by Dr. Henry." The suit demanded $412,000. It alleged misbillings on 44 surgeries performed over five years. Henry has always maintained that he never knowingly billed the programs for work he didn't do. Medical billing errors are common, he says, and who of us could argue that point? Henry says that he wasn't in the office full time during the period under investigation because he was serving as lieutenant governor, something that might have made errors more likely, or made him an easier target for an employee who wanted to falsify records. The money wasn't going to make Henry richer. He had committed to donating that income to Western Kentucky University. Henry also says an audit has shown that, if anything, he underbilled. And he notes that in other states where federal agents have investigated Medicaid and Medicare billings, it has been an institution, not an individual, under scrutiny. In this instance, federal prosecutors did not bring any charges against the institutions involved or other doctors. There's no sign that Henry needs the money. In 1995, when he was running for lieutenant governor, he reported $449,299 in adjusted gross income and $1.5 million in assets. Later financial disclosure statements don't indicate much change. An accomplished orthopedic surgeon, he donates time weekly at the University of Louisville's indigent clinic. After almost four years this is the outcome: Henry was never indicted by the grand jury that investigated the allegations (this despite the fact that former prosecutor Pence, now lieutenant governor, recently characterized grand juries as "a tool of the prosecutor" that could be convinced to indict "a ham sandwich." This week he said he chose not to ask for a criminal indictment because the matter was "best handled civilly"). Henry settled the investigation in September 2003, paying $162,000 but admitting no guilt. He says that cost him less than going to court and that he decided to do it after discovering he had prostate cancer. He wanted to make the whole thing go away so he could concentrate on his health, he says. A month after the settlement, the state medical licensing board found no evidence Henry had violated medical-practice laws. One person who worked in the same area as Henry has been indicted. In late May, a woman who supervised the billing operations during the time of Henry's questionable billings, pleaded guilty to six counts of fraud for embezzling more than $74,000. She faces up to 60 years in prison and a $1.5 million fine. Last week, the office of U.S. Attorney David Huber in Louisville issued a written statement in response to questions about these two cases and declined further comment. The statement said Huber's office is "satisfied that there is no connection" between the cases. Henry contends the whole thing was done to damage him politically. Pence said last week that "is absolutely false." Whatever the motive, it seems clear that Henry was singled out and accused publicly with very little reason. This is scary. It's not scary because it might affect Henry's political career. It's scary because it could happen to anyone. The federal judicial system is a wonderful, elegant institution, powerful enough to protect our rights, even from our government itself. It is wrong and dangerous to misuse it.